State v. Henson, 16-0914
| Decision Date | 02 November 2017 |
| Docket Number | No. 16-0914, No. 16-0888, No. 16-0850,16-0914 |
| Citation | 806 S.E.2d 822 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Respondent v. Ryan L. HENSON, Defendant Below, Petitioner and State of West Virginia, Plaintiff Below, Respondent v. Kerri S. Reigh, Defendant Below, Petitioner and State of West Virginia, Plaintiff Below, Respondent v. Jonathan W. Physioc, Defendant Below, Petitioner |
Michael J. Sharley, Esq., Westover, West Virginia, Counsel for the Petitioner, Ryan L. Henson
Douglas F. Kobayashi, Esq., KOBY LAW, Martinsburg, West Virginia, Counsel for the Petitioner, Kerri S. Reigh
Lisa A. Green, Esq., LAW OFFICE OF LISA A. GREEN, Shepherdstown, West Virginia, Counsel for the Petitioner, Jonathan W. Physioc
Patrick Morrisey, Esq, Attorney General, Robert L. Hogan, Esq., Deputy Attorney General, Counsel for the Respondent
Before the Court are the consolidated appeals of the three Petitioners, Ryan L. Henson ("Petitioner Henson"), Kerri S. Reigh ("Petitioner Reigh"), and Jonathon W. Physioc ("Petitioner Physioc") (also collectively referred to as "the Petitioners"), who were tried together before a jury. Each was convicted1 on charges of one count of burglary, three counts of robbery in the first degree, three counts of assault during the commission of a felony, and one count of conspiracy and sentenced.2
Several issues are raised by the Petitioners, but the main issue the Court must decide is whether double jeopardy principles were violated by the Petitioners' respective convictions for three counts of robbery in the first degree.3 Based upon our review of the parties' briefs and arguments, we find that under our law, the Petitioners should have been indicted, tried and convicted on only a single count of robbery in the first degree. The Court, therefore, reverses the Petitioners' respective sentencing orders on this issue only and the cases are remanded to the circuit court for entry of new sentencing orders consistent with this opinion. For reasons set forth more fully below, we find no other reversible error in connection with the remainder of the assigned errors raised by the Petitioners and affirm the circuit court's rulings on those issues.
The charges brought against the Petitioners stemmed from the brutal beating of Robert Basore ("Robert") and his two adult sons that occurred during a home invasion in which only property located in Robert's bedroom and belonging to him was taken from the home. According to the evidence offered at trial, about two weeks before the home invasion, in April of 2015, Sherry Basore,4 who was Robert's granddaughter, Petitioner Henson, and Totianna Etheridge, who was Petitioner Henson's then-girlfriend, visited Robert's home so that Sherry could borrow $20 from her grandfather to buy drugs. Sherry told these individuals that her grandfather had $80,000 in his home from the sale of some land. Robert testified that only Petitioner Henson and Sherry came into his home on this visit. Robert stated that he had about $200 in his wallet and that he gave Sherry money in front of the Petitioner Henson.
Ms. Etheridge,5 a key witness for the Respondent ("the State"), also testified that after the visit to Robert's home, Sherry told Ms. Etheridge and Petitioner Henson what her grandfather kept in his house. According to Ms. Etheridge, Sherry explained to Petitioner Henson where everything was located in Robert's home. Sherry also told Petitioner Henson that just her father and grandfather would be in the home. Sherry even suggested that they should go during the day because her father and grandfather "would be drunk and passed out." Sherry made such disclosures because she was "dope sick," or as Ms. Etheridge explained, Sherry was going through withdrawal from heroin and needed to get more drugs.
In the early evening on May 7, 2015, two masked men entered Robert's home, which was unlocked at the time. Both of Robert's sons were also at home when the invasion occurred. Robert was in the kitchen and his two sons were in the living room. The two intruders used some type of metal bar to beat all three men about their heads6 to subdue them. One of the intruders demanded that Robert tell him where his safe was and Robert refused. Robert was then dragged into his bedroom, where the intruder told him to give him his wallet and took the wallet from Robert's back pocket. The intruders also took a toolbox from Robert's bedroom containing A .22 caliber rifle with a scope was also taken from Robert's bedroom. The intruders then left the house, taking no personal property from either of Robert's sons. Robert's son, Michael, testified that he had not been robbed and that the items that had been taken from his father's home were not taken in his presence. There were no fingerprints or DNA obtained from the home and the victims were unable to identify the perpetrators because of the masks.
Ms. Etheridge testified that around 3:00 to 3:30 a.m. the next morning, she received a phone call from Petitioner Henson while she was working at the Lust Nightclub. Petitioner Henson told her that "he needed some money to get out of town because they just hit a lick." Ms. Etheridge testified that "hitting a lick" refers to "something illegal like a home invasion or some sort like that." According to Ms. Etheridge, Petitioner Henson, Petitioner Reigh and Petitioner Physioc7 arrived together "around back" of the nightclub in a large white pickup truck about thirty minutes later. Ms. Etheridge went "out back to give them the money and he just told me that they hit a lick and they needed to get out of town and they didn't get anything because ... [Petitioner Physioc] fucked it up." When asked by the prosecutor how that happened, Ms. Etheridge stated that "[Petitioner Physioc] ... grabbed the wrong safe." Ms. Etheridge did not testify that either Petitioner Reigh or Petitioner Physioc made any statements to her when Petitioner Henson was telling her what had occurred nor did they attempt to leave the vehicle. The Petitioners took the money from Ms. Etheridge and left.
Ms. Etheridge stated that she did not see Petitioner Henson again until the next morning. She and Petitioner Henson were living together at the Motel 6 in Hagerstown, Maryland. Ms. Etheridge testified that Petitioner Henson told her "[t]hat he tried everything he could to get the safe from the guy, but they had to beat him to be able to get anything" and that he had assistance in committing the crime. Ms. Etheridge then stated that Petitioner Henson told her that there were three victims, "the grandfather and the father and the uncle," and that it was "Sherry Basore's family."
Ms. Etheridge also testified that Petitioner Physioc had shown her "older, ancient like coins" that he had from the crime and that he had asked her if she knew where he could sell them. Ms. Etheridge also observed some of the stolen coins in Petitioner Reigh's handbag. According to Ms. Etheridge, "[Petitioner Physioc] ... and [Petitioner Henson] had went out somewhere, me and her [Petitioner Reigh] was actually going to shoplift and she was emptying her purse and a couple of the coins fell out of her purse." The stolen items were not found or offered into evidence.
None of the Petitioners testified at trial. At the conclusion of all the evidence, the jury returned a verdict of guilt as to all the charges against the Petitioners. The circuit court sentenced the Petitioners and this appeal ensued.
The Petitioners have asserted various assignments of error, which require this Court to apply different standards of review as we examine each issue raised. The Court, therefore, sets forth each standard of review within the discussion section of each issue.
The first issue requires the Court to decide whether the Petitioners were properly indicted, tried and convicted of three counts of first degree robbery8 instead of one count. The Petitioners first challenged the indictment9 arguing that two of the three robbery counts should be dismissed10 based upon their argument that the Double Jeopardy Clause as set forth in article III, section 5 of the West Virginia Constitution would be violated, as well as decisions issued by this Court,11 if they were convicted for multiple counts of first degree robbery. Conversely, the State contended that the three robbery counts were proper because there was a taking of property "from the presence of three distinct residents of a dwelling house." The circuit court agreed with the State and found that charging, and ultimately convicting, the Petitioners with multiple counts of robbery was proper because "while the $250 in cash, toolbox, and coins, technically belonged to Robert Basore, these items were also in the presence of Michael and William Basore because they were taken from their home."
This Court's review of "a double jeopardy claim [is] ... de novo." Syl. Pt. 1, in part, State v. Sears, 196 W. Va. 71, 468 S.E.2d 324 (1996).12 Utilizing a de novo review standard, we address whether the proper unit of prosecution was applied in this case.
"The purpose of the Double Jeopardy Clause is to ensure that sentencing courts do not exceed, by the device of multiple punishments, the limits prescribed by the legislative branch of government, in which lies the substantive power to define crimes and prescribe punishments." Id. at 73, 468 S.E.2d at 326, Syl. Pt. 3. Further, "[t]he analysis of whether a criminal defendant may be separately convicted and punished for multiple violations of a single statutory provision turns upon the legislatively-intended unit of prosecution." Syl. Pt. 4, State v. Goins, 231 W. Va. 617, 748 S.E.2d 813 (2013).
The Court begins by reviewing the relevant part of our...
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